Antis Tell Court They Would Rather See Elephants Euthanized Than in a
Zoo(posted December 2003)

In August 8, 2003, the United States District Court in Washington, D.C.,
denied a request by animal rights organizations to stop the importation
of live African elephants into the United States. Consequently, live
elephants were imported pursuant to a permit issued by the US Fish &
Wildlife Service (USF&WS) for the first time since late 1989 when the
African elephant was listed on Appendix 1 of CITES. The case is
important and significant as pointed out below. It addressed everything
from how "non-detriment" determinations are made for import permits of
all Appendix 1 species to the real motive behind animal rights
litigation. In the words of the lawyer for the animal rights plaintiffs,
"[I]t’s an extremely important precedent that you’re (court) being asked
to make here . . . . The world’s leading experts on African elephants .
. . say they are extremely concerned about the precedent this decision
is going to set for the international trade, not only in this species,
this Appendix 1 species, but in other Appendix 1 Species. . . ."

The plaintiffs sought to invalidate import permits issued by the USF&WS
to the San Diego and Lowry Park Zoos that were trying to import
elephants from Swaziland. The plaintiffs were the Born Free Foundation,
Elephant Alliance, Elephant Sanctuary, In Defense of Animals, Animal
Protection Institute (API), People for the Ethical Treatment of Animals
(PETA), Animal Welfare Institute, San Diego Animal Advocates, Animal
Legal Defense Fund, Toshim- suke Katoh and Richard Allan.

The animal rights plaintiffs raised every possible argument including
challenging the non-detriment determination made by the Service. All
import permits for Appendix 1 species, whether for hunting trophies or
live animal trade, require the Service to make a non-detriment finding.
In technical jargon, the Service must determine that the "purpose of the
import is not detrimental to the species." "The country receiving the
animal under CITES is supposed to look at the purposes. The country
exporting is supposed to look at whether it’s detrimental to the
survival of the elephant," said Wayne Hettenback representing the
Department of Justice.

The plaintiffs tried to shift Swaziland’s determination to the USF&WS,
but Judge John D. Bates kept rejecting that. The plaintiffs argued that
the Service had to duplicate the biological findings made by the
exporting country, but the Service’s position, which the Court accepted,
was that the US (importing country) was only required to make a
"purpose" finding. The protectionist even argued that the Service should
take into account the effect of the removal of the elephants on the
"social structure" of the elephants remaining in Swaziland. In this
case, the U.S. Attorney actually admitted that "they (the Service) do
more in practice than they’re required to under the language of this
convention."

That doing "more in practice" itself is not good for U.S. hunting
interests. That practice is what led to the Elephant Trophy Import
Guidelines Suit I filed and won against the Service in the early 90s.
Despite the success in that elephant trophy importation case, the
Service appears to be continuing their excessive and illegal practices
that can make import of trophies of Appendix I Species nearly
impossible.

The zoos and USF&WS that issued the permits argued that the import of
the elephants was necessary to reverse the decline in the gene pool of
African elephants in the U.S. because of the lack of successful
breeding. In other words, the elephants in the zoos in the United States
are at risk, which risk would be lowered with the importation. The
plaintiffs demonstrated complete contempt for maintaining elephants in
the United States for exhibition. The antis complained that "[i]t is for
one purpose only: to make more animals to put on display at these zoos
and other zoos around the country because they’re planning on trading
them and entering them into a captive breeding program with other zoos."
The antis claimed that was exclusively a "commercial purpose," which
trade is prohibited for CITES Appendix 1 species. Apparently, the antis
do not care if U.S. zoo elephants genetically decline or cease to exist.
They do not want animals in zoos. The ESA and CITES have become their
tools against zoos.

The plaintiffs stated on the record that they would prefer the elephants
be euthanized than imported. They prefer that animals cease to exist
rather than be hunted. This is a position that animal rightists
organization leaders have made to me personally at various CITES
meetings over the years. In this case, the elephants had been separated
and were to be culled in Swaziland if they could not be imported:

THE COURT: But his most recent declaration is pretty unequivocal.

MS. MEYER: He says it again. He says it again. ‘I would like to avoid it
if I could.’

THE COURT: But he says, if we can’t export these elephants now, I’m
going to cull them.

MS. MEYER: I think there’s plenty of evidence in the record for you to
look behind it. And the last thing I want to say, Your Honor –

THE COURT: You’re telling me to let the chips fall where they may, and
the chips falling where they may, may be that the elephants are culled.

MS. MEYER: If the elephants are euthanized in Swaziland, if Mr. Reilly
and the zoos or their brokers all decide that that’s the better outcome
here than to have a preliminary injunction in place until you can decide
the merits, that would be a better outcome than to have these elephants
put in crates, put on airplanes, brought over here, trained with bull
hooks, put in cages, and live the rest of their lives in captivity.
That’s right, Your Honor.

THE COURT: That’s the position of your client.

MS. MEYER: Absolutely, Your Honor.

THE COURT: Or at least some of your clients.

MS. MEYER: All of them. Thank you, Your Honor, I have nothing further.

1.) "In the end, as stated unequivocally by counsel for plaintiffs,
given the choice, plaintiffs would rather see the elephants dead than in
a zoo. . . ." 2.) "[I]f an injunction is granted, the elephants will be
culled. This might appear to mean, somewhat ironically, that plaintiffs
would be irreparably injured as the result of the very injunction that
they request; however, at the August 6 hearing in this matter, counsel
for plaintiffs explained that, from plaintiffs’ perspective, the
elephants will be better off – and thus plaintiffs’ interests will be
more fully advanced – if the elephants are killed rather than imported
and placed in the zoos. Taking the plaintiffs at their word, the Court
concludes, on balance, that plaintiffs’ interests – interests about
which the Court has some concerns in terms of standing - will be harmed
if an injunction is not granted, yet somewhat advanced if an injunction
is granted."

In short, the culling of the elephants would ironically advance
plaintiffs’ interests! They view the risk that the elephant would be
culled as the lesser of two evils. The Environment News Service quotes
Dr. Michael Hutchins, Director of Conservation and Science for the
American Zoological Association (AZA), as commenting "we can provide
these elephants with excellent care, rather than seeing them culled, as
their current park home cannot accommodate them. It is surprising animal
rights activists who profess to care about animals would rather have
them killed, than to live and help support essential wildlife
conservation, research and educational efforts."

The elephants were imported in late August, but the underlying suit is
still proceeding in the trial court. The denial of the injunction has
also been appealed. The lawyers for the protectionists and animal
rightists plaintiffs were Meyer and Glitzenstein, the same lawyers as in
the recent Argali case (see below). Also, one of the plaintiffs, Animal
Legal Defense Fund, was a plaintiff in the Argali case. The primary
motion before the Court at this time is one to dismiss the case on the
grounds that plaintiffs do not have standing. That is what won the
Argali case, so we are watching this elephant case closely for we expect
the Argali case may be appealed. In fact, the government cited our
Argali case as authority to deny the elephant/zoo case request for an
injunction. "This case (Argali) supports defendants’ arguments that
since the interim relief the plaintiffs seek does not prevent the harm
to their interests, the Court should not enter an order that does not
redress this harm." They actually attached a copy of the Argali
decision. The appellate court in this elephant case may also establish
important precedent on how non-detriment determinations are to be made,
which apply to import of trophies of Appendix 1 game animals, as well as
to trade in live animals. I must express sympathy for the zoos, the
Service, and the conservation of elephants for all that the
protectionists are putting them through. We cannot protect our
institutions, ourselves, our wildlife or our way of life without a
commitment to fight for our rights.